J. Sroczyński for WuW No. 12/2008 – The first Polish antitrust case before the European Commission

The Polish Office of Competition and Consumer Protection (OCCP) has released its plans to reform the leniency system. There are two main aspects of the reform. The first is the implementation of sanctions for individuals who participate in cartels. It is not yet decided whether such sanctions would include criminal responsibility, as opposed to being limited to financial liability only. The second aspect is the introduction of the fining guidelines, in order to eliminate the existing uncertainty as to the OCCP’s policies in respect of imposition of fines. Both measures are destined to encourage undertakings to submit leniency applications, the number of which has grown to 13 since the introduction of the leniency system in 2004.  

A complaint was filed with the EU Commission by Fakro, a Polish roof window producer, against its competitor Velux. Fakro’s complaint was initially filed with the OCCP but the relevant geographical market was defined by the authority as EU-wide. Consequently, the OCCP informed the Commission about Fakro’s complaints and the case is under review in Brussels. Fakro alleged that Velux is abusing its dominant market position, applying rebate schemes which foreclose Fakro’s access to several European markets. Fakro claims to be the second largest producer of roof windows in the world, enjoying a market share of 17%. In Europe, its market share does not exceed 5%.

For the first time, the OCCP has accepted commitments in a resale price maintenance case on the construction materials market. The commitments obligate Xella, a producer of concrete blocks, to amend contracts with its distributors, eliminating clauses which prohibit reselling the products at prices lower than purchase costs. The OCCP did not impose any fines in this case, ruling that the commitments would be a sufficient remedy.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 12/2008.